Murder law reforms
New proposals to reform the murder laws in England and Wales are being billed as a "substantial change" by Justice Minister Maria Eagle. But I wonder just how much these long-awaited and much debated ideas will impact on the courts.
In their own consultation document published this morning (pdf link), ministers seem to accept that the proposals to introduce new partial defences against murder are either unnecessary or will be used only very exceptionally.
Where a woman has suffered years of violent abuse they are planning a partial defence against murder defined as "killing in response to a fear of serious violence". And yet, this is the government's own analysis of the situation:
"We do not think that there is much of a loophole in practice, partly because the scope of the complete defence of self-defence is so wide and partly because of the way that the courts have over the years extended the application of the partial defence of provocation. Our analysis of cases from 2005 did not reveal any where a murder conviction appeared to have resulted inappropriately as a result of the absence of such a partial defence."
The reality seems to be that the courts are ahead of the legislators on this. Back in 1995, the Appeal Court ruled in the case of Emma Humphreys, a child run-away who, aged 17, was working as a prostitute, killed her pimp and was sent to prison indefinitely. The judges decided that the years of appalling violence and abuse she had suffered, and the provocation leading up to the stabbing meant her crime was manslaughter not murder. After 10 years behind bars, she was released.
The Humphreys case provided the legal precedent for broadening the definition of provocation to include just the kind of "slow-burn" violent abuse that campaigners had been arguing for.
The second partial defence proposed by the government relates to "killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged".
Again, ministers seem to accept that this defence would be very limited in its use. In fact, they can come up with only three scenarios in which it might be run:
1) A rape victim who kills her attacker after he taunts her
2) The mother of a rape victim who kills a man she catches raping her daughter
3) After a long-running dispute between neighbours, one of them kills the other
In (1) and (2) I would have thought the existing defence of provocation might be run while (3) strikes me as likely to be a clear case of murder. The Ministry of Justice is anxious to stress that this defence would only be available in "very exceptional" circumstances.
Solicitor General Vera Baird, quoted on the government release, only mentions situations in which this defence would NOT apply. "This can't be used when ordinary domestic conflicts cause friction and emphatically will not be available as a reaction to sexual infidelity", she says.
It is the proposal that sexual infidelity should be explicitly ruled out as a defence of provocation that may have the greatest impact in the courts.
I am happy to be corrected but it seems to me that we could end up with a situation where loss of emotional control having witnessed a rape is grounds for reducing murder to manslaughter while loss of emotional control having caught a spouse 'in flagrante' with a lover is not.
Of course, the real reason we are tying ourselves in knots over this is the mandatory life sentence for murder. With only that one sentence available to a judge, he or she is not in a position to differentiate between the contract killer and the battered wife.
They have some flexibility in deciding upon the minimum tariff for the murder, but manslaughter allows much greater scope for discretion. It can, one must remember, mean life or immediate release.
A survey of public opinion included in the 2006 Law Commission report (pdf link) on this subject found that, after considering different scenarios, almost 63% of people thought the mandatory life sentence for the most serious homicides was wrong.
To my mind, there will be some suspicion that this consultation on changing the homicide law is more about gender politics than it is about murder.
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Strikes me a daft and change for change's sake.
Scarily, I'm getting quite used to this sort of behaviour.
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More tinkering at the edges! Why not simply acknowledge that judges are far better qualified and competent to make the correct decision and simply get rid of mandatory sentencing altogether?
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So if your wife or husband is having an affair it is no longer considered "seriously wronged" in the eyes of the law. If that is the case then it is not a ground for divorce since adultry is no longer considered seriously wrong thing to do like dropping litter.
On the other hand if your wife or husband shouts at you, make verbal threats, slapped you then you are fully entitle to kill him or her and you can plan how and when to kill them at your convenient.
Excuse me but this has to be one of the most stupidest joke I have ever heard in my life! If any government ministers (including Harriet Harman) thinks this is a great idea I am afraid the country has been taken over by lunatics.....
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I think this was due for reform. The automatic life sentence for murder actually does cause difficulties. But the way in which it has been reformed is typical of new labour - discriminatory in it's impact.
There are 10,060 men serving indeterminate sentences. There are 322 women serving them. Clearly there is an unequal impact of the law, but (un)surprisingly this government wants to address the issue by entrenching the existing case-law into statute law and then extending the extent of the discrimination.
Summing up the changes:
Man kills woman = murder = life
Woman kills man = manslaughter = 2-3 years or probation
The law should treat all people equally. Killing someone is wrong. The gender of the perpetrator or the victim shouldn't come in to it.
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"I am happy to be corrected but it seems to me that we could end up with a situation where loss of emotional control having witnessed a rape is grounds for reducing murder to manslaughter while loss of emotional control having caught a spouse 'in flagrante' with a lover is not."
Are you saying this would be a bad thing, or that the two things are remotely comparable?
Rape is a severe crime, often involving additional physical violence, with long-lasting effects for the victim, defined by a lack of consent.
Adultery is neither a criminal nor civil offence, and is consenting between the two participants. There is a breach of trust involved, but breaches of trust in general are rightly not seen as grounds to kill someone.
It seems analogous to comparing reactions to a vicious unprovoked assault to reactions to seeing a friend lose a boxing match - please clarify what you actually meant by that sentence.
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I agree with Mark Easton that this is about gender politics as much as anything. Look at the names of the sponsors and the following quote:-
2) The mother of a rape victim who kills a man she catches raping her daughter
Does a father have similar rights? What if lesbian attacks a women?
This law would give rights to women that even the State does not have - the right to take a rapists life.
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1. A woman is more likely to kill a man because of long term physical abuse (than vice-versa). This is due to men having a greater physical power and physical agression (rather than emotional aggression, which women are more likely to engage in).
2. On the other hand, a man is more likely to kill a woman (than vice-versa) because of his life being torn apart due to his wife / partner cheating on him. Infidelity is harder to take for a man than it is for a woman due to a man's genetically inbuilt pride. This often results in the man descending into depression, alcoholism and financial problems - which also means he can't keep his kids. Women generally do not slide into these characteristics to the same extent as men.
The first type of killing above is now being treated more sympathetically and the second is being treated less sympathetically.
It seems that those in power are judging all human actions solely by the standards that women believe are most important to their own gender. I can't imagine how awful it must be for someone, male or female, to be abused or fear for their life. However, in theory, they can walk away when warning signs appear. On the otherhand, someone who's life is wrecked because his wife/partner who he has built it around has cheated or left him for someone else is just as traumatic and painful. Additionally, the anger and emotions at the point of disclosure are likely to be far higher than they would be in a gradual long term abusive relationship.
Who are the people at the centre of pushing for this change? Sisters are doing it for themselves.....
- Justice Minister Maria Eagle
- Attorney General Baroness Scotland
- Solicitor General Vera Baird
- Harriet Harman, Minister for Women and Equality (by the way, is that not a conflict of interests post?)
Hmm, equality?
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"killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged"
Isn't that the usual justification for 'Honour Killings'?
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When you (Mark Easton) discuss the partial defence "killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged" and criticise it as being "very limited" in use, I wonder if you've missed the point of the proposals?
Presenting it in that way suggests as if the government is proposing creating a new defence which isn't really necessary. But that's *not* what they're doing - they're proposing to - in effect - significantly narrow the scope of the existing defence of provocation. If the proposal doesn't turn out to be of very limited use in practice, they'll have failed in that goal.
For that reason, your observation that some of the cases covered by this defence would already be covered by the defence of provocation is neither here nor there, because the government is proposing to abolish that defence (see para 24 of the consultation paper), something which your blog post surprisingly omits to make clear. So the important question is not what the new defence will include, but what it won't.
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This is from the story on the BBC News website:
"Harriet Harman, Labour's deputy leader and Minister for Women, said: 'After a man has intentionally killed his wife, bereaved relatives have said to me "Why is he allowed to try and get away with murder?
"He planned to kill her, he intended to kill her, he did kill her. How is this not murder?"
At the moment the law allows him to try to get off a murder charge by claiming she provoked him, for example by being unfaithful.
'It's unacceptable if you've lost a sister, or a mother, to then be told it's her fault because she provoked him."
But yet she's pushing proposals that suggest it's perfectly acceptable to lose a father or brother, and then be told that he provoked her (his murderer), utterly disgraceful.
I absolutely despise this woman, she is an absolute disgrace, and her job title "Minister for equality" is a wind-up, that was made evident when she cracked her "joke" about there not being enough planes for the men that would want to leave the country if she was PM, could she really have said this "joke" about any group other than men? No chance.
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There is no need to change the law.
Murder is murder no matter which gender commits it.
We are trying to tackle the extreme end result rather than the cause.Lets get people out of situations where they fear for their lives earlier,but dont split the law up on a whim of fancy by a think tank of people who are set to gain from it.
Ms Harperson is noted for reverse discrimination in her thoughts about tackling problems of perceived inequality.
Law for it to work HAS to be equal no favourites just the same for everyone otherwise it fails us all.
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As a serving officer in a CID department i am concerned that this proposed change in the law will 'leak' into other murder cases causing 'grey areas'. An example of this would be two gang members fighting with knives in the street where one stabs the other.
Provocation would currently come into play if the offender could prove that it was 'kill or be killed' but without provocation is it now murder without a defence? or is it that there is a risk of serious violence? or seriously wronged?
Is there going to be an 'immediate' test put upon the proposed change? a example given on the news tonight was a wife stabbing her husband after he threatened to beat her within an inch of her life when he sleeped off his drunken state. Is that an 'immediate threat'? The question would be raised (rightly or wrongly) why didn't she leave the home? was it an immediate threat to her life?
As a Police Officer i am not scared of change, our laws tend to change daily these days but i think this proposed is not clear.
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If a Father4Justice campaigner assasinated Harriet Harman in a carefully planned operation because of the bias anti father policy that prevented him from seeing his children that caused him years of anguish, loss and pain in effect he was "seriously wronged" by government policy will he be only charged with manslaughter?
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Aside from the gender politics, the point is that the judges would like a bit more of a free hand and the current law is irritatingly constraining. Hence with a bit of a shake up they'll be able to develop loads more imaginative case law, basically with a view to their chief objective which is letting more people out of jail quicker, based on the lunatic notion that they have been rehabilitated. As Mr Easton says, what really gets their goat is the mandatory life sentence for murder, but for the present they're willing to live with that so long as they get a category of murder that allows them to set a five year tariff rather than the ten to fifteen they've had to concede at present.
The key point to remember is that assurances from the government, lawyers, judges and so on that it won't make much difference are entirely worthless. The judges will do what they want with the new law, and then later on they will all say that they are astonished that anyone imagined that this was anything other than a most significant and decisive law change.
Do you remember that fuss a couple of years back about babies being aborted on the grounds of having hare lips ? Someone was rude enough to go back to the Parliamentary debates and find Mr Steel et al getting very shirty about the mendacious claims of "anti abortion extremists" that that law change could lead to abortions on the grounds of hare lips. This was a calumny and the extremists should be reported to the GMC for their lies. So a few years on, we have hare lip abortions, and er let's not get stuck in the past, let's move on.
The same thing will happen here. All changes to the criminal law recommended by the Law Commission are intended to serve the Howard League's agenda - less punishment, more "understanding", more "rehabilitation", more cash for lefty university criminologists and lefty lawyers. Plus sa change...
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Erm, no. No, and no again. This is about as wrong a commentary as you can get. Previously, the existing law was unbalanced because a man could kill his wife for nagging and argue that he had been pushed beyond endurance when he killed her, and get off with manslaughter.
It's not gender bias to think that there is something wrong with that.
The proposals actually involve restricting the defence of provocation to serious cases, rather than simply losing your temper.
It would be really nice if you understood the topic before setting others off on some rant about how women can get away with murder.
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This comment was removed because the moderators found it broke the House Rules.
I am sure Acevilla at #12 with his expert knowledge will correct me if I am wrong but I believe that when somebody is charged with murder, they are that they did murder . . etc 'contrary to Common Law'. The common law has been adequate to the purpose for centuries changing as it does to reflect the character and thinking of the time. In this respect, it resembles the constitution itself which, being unwritten can adapt similarly.
The best definition I have ever heard of the common law is surprisingly simple - 'a system which delivers justice by the application of that which is fair and reasonable'. Over-legislation has done irreparable damage to the system but it could possibly cope with this if only the judiciary were free to apply the 'fair and reasonable' test in all cases.
As I said in my earlier post, the biggest single obstacle to the continuation of the practice is mandatory sentencing. If a judge were free to hand down a proportionate sentence, which could be anything from an absolute discharge to life, this proposed legislation would be totally unnecessary.
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Before commenting, please note:
THE PROPOSALS ARE NOT GENDER SPECIFIC - they apply to men AND women.
As many people have already pointed out, THEY NARROW - NOT BROADEN - THE GROUNDS OF 'PROVOCATION'.
Unfortunately, so many of the people accusing Harriet Harman of being 'sexist' are the very ones spouting sexist claptrap about women who find themselves in the kinds of situations where these proposals would be relevant. Ms Harman's work is about acheiving equality - redressing the balance inevitably means one group which has been historically privileged will feel hard done by as they feel their privilege slipping away.
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"2) The mother of a rape victim who kills a man she catches raping her daughter "
Why not the father of a rape victim too?
Or is that yet another example of "politically acceptable" sexism in today's UK?
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I absolutely agree with you Mark Easton - a case of gender politics overtaking the rule of law.
Having studied criminal law, the difference between a murder and manslaughter charge is the specific intent to kill or severly injure - the particular circumstances around a manslaughter charge cause the perpetrator to lose all self-control.
This defence is currently applied by the courts in the case of 'battered wives', pushed to the edge as a result of years of abuse, and partners witnessing infidelity, if held to have lost self-control.
Harman also makes a dangerous assumption that only women suffer domestic abuse, and only men kill over infidelity.
Perhaps extend the law on manslaughter to cover 'mercy killings' etc, but surely it's dangerous ground to remove a life sentence for any form of premeditated murder?
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@ #15 ishfet:
"a man could kill his wife for nagging and argue that he had been pushed beyond endurance when he killed her, and get off with manslaughter. "
Which case is this?
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Nobody, male or female, is being granted the 'right' to kill by these proposed changes; manslaughter is, and would still remain, an extremely serious criminal offence.
Nearly all the objections to the proposals are based on hypothetical cases which even the scriptwriters of 'Midsomer Murders' would reject for implausibility.
Real homicides are nasty, messy and complicated events which don't fit neatly into the categories we would like to devise for them. I believe that our judges and juries are capable of assessing the evidence in courts of law and coming to a fair verdict. The cases cited by Mark Easton show that the justice system is able to recognise some 'grey' areas, but these proposals go some way in helping judges to decide where the boundaries lie where the defence of provocation is made.
Having got all that off my chest it seems to me that we have all missed the point here, which is that Harriet Harman is preparing her defence for when she finally gets round to planting the (metaphorical) knife in Gordon's back!
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A few years ago a woman stabbed her boyfriend to death, a single blow to the heart because her daughter threw a tantrum and he refuse he a glass of water. No history of violence and she most certainly not a victims of domestic abuse but she got only 2 years for manslaughter. Her defence was provocation and loss of control in the spur of the moment.
Another case a boyfriend played a prank by spraying shaving foam on her face, she reacted angrily by beating him to death, her defence was provocation and loss of control and she got only 4 years.
Now will these two above offenses be reclassified as murder under this new proposals or is the term "seriously wronged" applies here? I can imagine a judge accepting a manslaughter conviction if a woman killed her partner for leaving the toilet seat up as "seriously wornged" by giving her only 18 months but will not accept that defence if a man killed his partner for leaving the toilet seat down.
I am sure judges will stretch the definition of "seriosly wronged" for women while for men this defence will becomes virtually none existence.
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Harriet Harman has taken the Law Commission's proposals and twisted them for her own political ends. And as it has been said previously her argument is fundamentally flawed. On the one hand she says that it it never acceptable but a woman killing a man is acceptable if there is a serious wrong or fear of violence. What a hypocrite. If she really wanted to address the wrong then surely the answer i simply to bring in a new second partial defence and leave provocation alone. What gives Harriet Harman a mandate to overturn 200 years of legal principle?
And if anyone seriously believes this is not about gender politics watch her interview on the BBC pages and think again.
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"2) The mother of a rape victim who kills a man she catches raping her daughter "
Did they seriously say that? No wonder they're being accused of sexism - what about the FATHER of a rape victim in the same situation? What on earth would be the difference?
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He's a man. He will therefore be convicted of murder.
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Much as most people who post on BBC forums think the US really is the great Satan, I've always admired their murder classification system. Even the Scottish crime of 'culpable homocide' is more sensible than english 'manslaughter'.
We should have a 4 tier system that recognises the fact that all murders are not equal:
Murder 1- would be Ian Huntely etc with a whole life tarif the only option.
Murder 2- would be most current murders with a 15-life tarif.
Murder 3- would cover the 'provocation' killings and have a 1-10 year tarif. This would still recognise that killing someone is wrong but also recognise that a battered wife killing in self defence has not done something as evil as the Huntley's, Sutcliffes etc. It could also cover Tony Martin type excessive self defence cases.
Murder 4- would be the sort of euthanaisa case when an old man kills his wife of 40 years because she's in agony from cancer. At present HE will be convicted of the same crime as Huntley. There should be no automatic jail sentence for Murder 4's.
Manslaughter- ie. death caused by criminal negligence not intent should be unaffected.
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